Personal Injury Law Journal

Alisa C. Boll

aboll@stark-stark.com
609.895.7240

Alisa C. Boll is an Associate and member of Stark & Stark’s Workers’ Compensation Group. Prior to joining Stark & Stark, Ms. Boll worked as an Associate for the law firm of Sullivan Cunningham Keenan Mraz Oliver & Violando, LLP in Albany, NY. While there, Ms. Boll was responsible for preparing Trial Memoranda of Law and Appeals, preparing appeals to the Appellate Division, Third Department, attending depositions, oral arguments and attending regular hearings and trials before the Workers’ Compensation Board.

I have met with several new clients lately who have come in to meet with me strictly to settle their workers compensation cases. Now, this is perfectly acceptable both practically and legally, it’s just not the usual course of things. Generally a client comes in to file a workers’ compensation claim when there is a new accident, a need for treatment, a problem with medical bills getting paid or some other issue with their case. We then file the claim petition and start working on their case, requesting treatment, collecting records, filing motions, all depending on what is needed in a particular case.
                            
In these recent cases, however, the petitioner has already completed all of his/her treatment and all I have to do is settle their case. Sounds easy enough. Well it is, but it still involves some work. Once I meet with the client, I have to file a claim petition with the Division of Labor. Then I need to collect all of their medical records for the injuries related to the work accident. This is often the longest part of the process. If the treatment was authorized by the workers’ compensation insurance carrier, we request the records from them directly. If not, we have to write to each medical provider and request the records from the doctor’s offices. Many doctor’s offices are notoriously slow at responding to requests for medical records. Once we have all of the medical records we set up an evaluation with an independent medical evaluator for a permanency exam. Generally these doctors schedule their exams two to three months in advance. Then we write a summary of the medical records to send to the evaluator along with some information about your accident and the job you were performing at the time of the accident.

It can take a month or more to receive the report from the independent medical evaluator. When we have that report, giving a percentage of disability, we are ready to go to court and begin settlement negotiations on your behalf. Of course, the insurance company has to send you to their independent medical evaluator for an exam too and this can take an additional few months to complete. Often though, the insurance company is able to set up their exam first since they have all the medical records to start with.

Now that both sides have permanency evaluations, the parties can go to court and begin negotiating towards settlement of your case. We have to wait for the case to come up on the court list and this happens in 3 week intervals. The petitioner’s attorney makes a demand to the insurance company and most of the time the respondent attorney has to bring the demand back to their client and seek authority for settlement. Then the respondent’s attorney comes back with authority and presents their offer of settlement. The petitioner’s attorney is obligated to relay any settlement offers to their client. We always call our clients in to the office to meet face to face and review the settlement offer. That way we are better able to review medical records with you and answer any questions you may have about the proposed settlement. If we feel that the settlement offer is fair and appropriate we will recommend that you accept it. If not, we will suggest that you turn it down and either go to trial or see if we can re-negotiate the settlement, possibly with the input of the Judge of compensation.

Once all of that is complete, the case is ready to be settled in court before the Judge. So even though these clients came in at the end of their case, there was still a lot of work to do and it can take six months or longer to get it all done and the case ready for settlement.

Alisa Boll is a member of Stark & Stark’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Boll.

Wage reconstruction is not something that we have to deal with in the majority of cases, but it does come up from time to time.     

The first step in determining the appropriate rate of compensation is to determine "wages" as defined in N.J.S.A. 34:15-37. The rate of compensation may not exceed 70% of petitioner's average weekly wage at the time of the accident, subject to the maximum and minimum rate in effect for the year the accident occurred. The way this works in practice is that an insurance claims adjuster should obtain “26-week wage statements” from insured/employers so that an average wage can be computed. We use 26-weeks of wages to determine the average weekly wage because the Workers' Compensation Act (N.J.S.A. 34:15-37) uses "six months" as the appropriate look-back period for wages.    

The New Jersey Supreme Court in Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993) instructed that reconstruction of wages is appropriate when necessary to compensate the worker for loss of earning capacity, i.e., diminution of future earning power. The 'loss of earning capacity' includes a loss of "potential for full employment." Where an employee, who is permanently disabled due to an injury on a part-time job, also has a full-time job, use of a "reconstructed" work week is appropriate if there has been an impact on the employee's ability to return to a full-time job. (Citing Mahoney v. Nitroform, 20 N.J. 499 (1956). By contrast, where a worker with a part-time and full-time employment is permanently partially disabled from the part-time employment but able to return to the full-time employment, reconstruction of the work week as if the part-time employment were full time employment is improper. (Katsoris, 131 N.J. at 548).

I recently met with a client who was involved in a motor vehicle accident while driving at truck for work. He became dizzy while he was driving and rear-ended another driver. He sustained multiple orthopedic injuries as a result of the accident. He went to the hospital and the doctors told him he was not able to drive for a week due to the dizzy spells he was having. The question then arose as to whether or not workers’ compensation was going to pay him for the week he was out of work.

In this type of case, where a condition unrelated to employment causes an accident, treatment for the unrelated condition is not covered under workers’ compensation, but any injuries sustained as a result of the accident are covered. So in this case, the accident was caused by a dizzy spell and any treatment for that condition will not be covered. Also not covered is the time he is out of work since he is unable to drive due to the dizzy spells. Workers compensation will cover the treatment for the orthopedic injuries that this client sustained as a direct result of the motor vehicle accident since he was driving in the course of his employment.      

The Supreme Court of New Jersey addressed just this issue in George v. Great Eastern Food Products Inc.,44 N.J.44 (1965). In that case, the employee died from a fractured skull sustained as the result of an ideopathic fall (used in the sense of a fall caused by a purely personal condition having no work connection whatever) “in the course of” his employment. An attack of dizziness, apparently induced by some cardiovascular condition, precipitated the occurrence. He did not strike anything until his head hit the level concrete flood upon which he was standing, bringing about the injury. The Court held that if the fall “was occasioned by or was the result of a disease or physical seizure and was not contributed by ‘what the workman had to do’ it is not compensable. On the other hand, if the fall ‘would not have occurred but for the services rendered’ in the employment, it is covered by the statute.”

The Supreme Court further held, “if the employee is caused to fall idiopathically and is located in the course of his employment at even a slight height at the fall’s inception or is standing at floor level and on the way down falls into a pit or strikes a table, chair, desk, stove, machinery or some other object situate on the employment premises, the resulting injury is compensable.” citing Reynolds v. Passaic Valley Sewerage Commissioners, 130 N.J.L. 437 (Sup. Ct. 1943).

The facts of your particular case are very important in determining what is compensable and what is not. The attorney’s at Stark & Stark are familiar with these types of cases and can help you sort out what treatment should be covered by workers’ compensation insurance. Please contact me if you have questions regarding your workers’ compensation case. I’d be happy to meet with you, here in my firm’s Lawrenceville, New Jersey office, free of charge to review your case in more detail.         

Informal hearings are typically scheduled in a district office close to where you live or in a nearby county. You will receive notice of the hearing date, time, assigned Judge, and the address and phone number of the hearing approximately two weeks before the hearing date.

During the hearing the Judge will review your medical records and any benefits you have already received. The Judge may ask you questions about your disability and whether your injury has limited your physical activities. Then the Judge will have a discussion with you and the insurance claims representative and based upon the information provided, the Judge will recommend a settlement amount. The recommendation does not have the effect or protection of a judicial decision, but if everyone agrees with the recommendation, you will be asked to sign an agreement. A payment will be issued to you from your employer or their insurance carrier as soon as possible.

If your condition gets worse or you need additional medical treatment after accepting an informal settlement, you should contact your employer or their insurance carrier with your request for treatment and/or additional benefits. If the additional benefits are not provided you have the option of filing a formal Claim Petition with the Division of Workers’ Compensation. The formal claim must be filed within two years from the date of the accident or the last payment of benefits, whichever is later.

You have a right to an attorney (or you may just want one to help you navigate the system) whose services may include collecting all medical records and obtaining appropriate medical evaluations so that information regarding your residual conditions is provided to the Judge before a determination is made. The Judge of Compensation may allow an attorney’s fee, where warranted, for services rendered on behalf of the worker in an amount not to exceed 10% of the settlement award.

If you decide not to accept the proposed settlement, you still have two years from the date of the accident or from the last payment of benefits to file a formal Claim Petition. If you have questions and would like to discuss your workers' compensation case in more detail, contact me for a free consultation here in my frim's Lawrenceville, New Jersey office.

Summertime often brings work outings, company picnics and firm softball games. Usually, these outings are a source of entertainment and team building, however, accidents can happen. The question then becomes: is this a work related accident because it was at a work event or is it not work related because it wasn’t during the normal course of employment.

In general, recreational or social activities are considered to be within the course of employment when:

1. They occur on the premises during a lunch or recreational period as a regular incident of the employment; or The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
2. The employer derives substantial benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

In New Jersey, it has been held compensable when participation was expected by the employer by threatening that you will be hurt (either docking of pay or the employee’s chances of advancement within the company). Also in New Jersey, if volunteers (fire or police) are injured during the course of a fund-raising event, even if they are working for someone else at the time, then the injury is considered compensable.

This can be a complicated issue. If you are injured during a company outing, please call us for a free consultation. We have experienced trial attorneys able to handle the complex legal issues that can arise in a workers’ compensation case.